WE ARE VERY MUCH OPEN – – FOR REMOTE BUSINESS: See How Pennsylvania’s Decision to Shutter Non-Life-Sustaining Businesses Impacts Yours

Late on Thursday, March 19, 2020, Governor Tom Wolf ordered all non-life-sustaining businesses in Pennsylvania to close their physical locations no later than 8:00 p.m. on March 19, 2020, to slow the spread of COVID-19.

The Commonwealth provided a chart, which identifies categories of businesses that the Commonwealth classifies as life-sustaining. Click here to view the chart. Pennsylvania businesses should review the list carefully, as the list draws careful distinctions even within the same industry – for example, grocery stores are deemed to be life-sustaining and can remain open, whereas specialty food stores must shutter their physical locations. Similarly, car dealerships are required to close, but auto part stores and auto repair shops can remain open. For businesses that operate life-sustaining and non-life-sustaining businesses out of the same physical location, it is advisable for the business to work with the appropriate authority to determine whether, and if so how, that business is required to shutter its physical location.

Notably, restaurants and bars may remain open but only to provide take-out service. This is an extension of an earlier restriction that had been imposed on certain counties in Pennsylvania.

Businesses are required to close only their physical locations. Thus, employees may continue to telework or work remotely. Employers should, wherever possible, consider whether telework is an option for at least a portion of its workforce. While, for certain industries, such as legal services and financial services, telework is increasingly the norm, other industries may not have easy, or even any, options to permit employees to work remotely.

For those businesses that cannot remain open under this Order and need to lay off employees as a result, those employees can and should be directed to apply for unemployment compensation. Governor Wolf indicated that his administration was reviewing options available to help support businesses while the closures remained in place, and the federal government is also considering legislation designed to help small and mid-sized businesses during the economic downturn caused by the COVID-19 related closures and restrictions.

Enforcement actions against businesses that fail to comply will begin at 12:01 AM on Saturday, March 21, 2020. Penalties for failure to comply could include citations, fines, or license suspensions. Several Pennsylvania agencies have been charged by Governor Wolf to help enforce the Order and ensure compliance. In addition, “the Department of Health is authorized to prosecute noncompliant entities for the failure to comply with health laws, including quarantine, isolation or other disease control measures. Violators are subject to fines or imprisonment.” Thus, while the loss of revenue will be difficult for many businesses to absorb, the costs of non-compliance could be far more devastating in the long run.